Advance Air Solution (Pty) Ltd v Ncume N.O and Others (PR181/22) [2024] ZALCPE 33 (6 August 2024)

Advance Air Solution (Pty) Ltd v Ncume N.O and Others (PR181/22) [2024] ZALCPE 33 (6 August 2024)

The commissioner’s failure to invoke section 142(9) of the LRA and pursue contempt proceedings against a subpoenaed witness constituted a material irregularity. This omission prevented the applicant from presenting crucial evidence, resulting in an unreasonable finding of substantive unfairness. Furthermore, the commissioner’s finding of procedural unfairness was not supported by the evidence, as the third respondent was given an opportunity to state his case but chose not to do so. The commissioner’s decisions on both substantive and procedural fairness fell outside the bounds of reasonableness and were reviewable. The arbitration award was therefore set aside and the matter remitted for...

Citation
[2024] ZALCPE 33
Parties
Applicant: Advance Air Solution (Pty) Ltd; Respondent: Ncume, A N.O (As Commissioner); Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Lusiphi, Makhetha Ben
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
6 August 2024
Case Number
PR181/22
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review application granted; arbitration award set aside and matter remitted for de novo arbitration.
Judges
MZN Lallie
Legal Topics
Unfair Dismissal, Arbitration Review, Procedural Fairness, Substantive Fairness, Hearsay Evidence
Labour Law Civil Procedure Unfair Dismissal Arbitration Review Procedural Fairness Substantive Fairness Hearsay Evidence

Case Brief

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Parties

Advance Air Solution (Pty) Ltd

Applicant

Ncume, A N.O (As Commissioner)

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Lusiphi, Makhetha Ben

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner committed a reviewable irregularity by failing to invoke section 142(9) of the LRA regarding a witness's contempt.
  2. 2 Whether the commissioner’s decision on substantive and procedural fairness of the dismissal was reasonable.
  3. 3 Whether the applicant discharged the onus of proving the fairness of the dismissal.

Ratio Decidendi

The commissioner’s failure to invoke section 142(9) of the LRA and pursue contempt proceedings against a subpoenaed witness constituted a material irregularity. This omission prevented the applicant from presenting crucial evidence, resulting in an unreasonable finding of substantive unfairness. Furthermore, the commissioner’s finding of procedural unfairness was not supported by the evidence, as the third respondent was given an opportunity to state his case but chose not to do so. The commissioner’s decisions on both substantive and procedural fairness fell outside the bounds of reasonableness and were reviewable. The arbitration award was therefore set aside and the matter remitted for...

Court Disposition

Review application granted; arbitration award set aside and matter remitted for de novo arbitration.

Orders

  • The late filing of the review application is condoned.
  • The arbitration award issued by the first respondent under case number ECPE5848-21 and dated 14 July 2022 is reviewed and set aside.